Let’s make sure this consultation is about people's rights!

Updated 5 November 2018 The NSW government is consulting about proposed legislation for 'protections for residents of supported group accommodation in NSW'. We can all make a submission to tell the Government they must protect the rights of people with intellectual disability. By Jim Simpson, Senior Advocate, Council for Intellectual Disability.

Update, 5 November 2018

The NSW Government has now released its report on this important public consultation about people with disability living in supported accommodation.

We were delighted to have run some focus groups for the Government so that people with intellectual disability could give the Government their views. We also published this blog to add our own ideas.

We are heartened to see so many people agreed with our argument that people with disability must be protected against unfair eviction. Now it’s up to the Government to act on all our concerns, and make sure people with disability in supported accommodation have their rights protected.

The Government's consultation is called 'Resident Rights Consultation'. This title is misleading. Like any regulation of the relationship between residents and landlords, the consultation is in fact about the rights and obligations of both the landlord and the residents.

There is obviously a case for spelling out these rights and obligations clearly so that everyone knows where they stand. However, this should happen in a way that does in fact protect the rights of people with intellectual disability and does not leave them worse off than before the legislation.

Below are some key issues we at Council for Intellectual Disability (CID) have identified.

The consultation assumes that people can negotiate and understand contracts

The consultation paper proposes that the landlord ('accommodation provider') will have to provide an accommodation agreement to the resident and the resident should sign it.

People with intellectual disability would be very vulnerable to signing an agreement that is unfair or which they do not properly understand. To avoid this risk, the first preference would be to provide independent support to the person so that, as far as possible, the person is able to understand and make an informed decision about the agreement.

However, there are likely to be thousands of people with intellectual disability in supported accommodation who, even with maximum support, do not have the ability to make informed decisions about agreements that they sign. The way to cover this situation would be applications to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for a financial manager to be appointed. The government would need to make a lot of funding available to NCAT and to the NSW Trustee to act as financial manager for people who do not have involved family members or friends who can take on this role.

An alternative approach would be for the legislation to guarantee minimum rights for people in situations where they are unable to sign an agreement. This is how the NDIS seems to approach this issue in its 'terms of business'.

Choice of co-residents

The paper does not deal with this important issue. Most people in the community get to choose their homes and who they live with. So should people with disability!

Historically, this has often not been the case for people with intellectual disability, especially people with complex behaviour support needs. If people had this right before a new person moved into their home, many problems of incompatibility and challenging behaviour could be avoided.

Protection from unfair eviction

Up until now, a common understanding in funded disability supported accommodation has been that a person is safe from eviction for the long term. They have had a permanent home if they want it. This understanding has been very strong in ADHC group homes.

The possibility of eviction is a big concern for people who have behaviour support needs. Any legislation needs strong safeguards to protect people against unfair eviction.

For an eviction system to be fair to people with intellectual disability, it needs to include safeguards like:

A starting point that accommodation is a person’s home for as long as they want.

Independent support and advocacy for a person who is in danger of eviction.

That any eviction requires the approval of NCAT.

That NCAT has broad powers so that it can take a problem-solving approach and refuse eviction in unfair circumstances, for example if eviction is based on a person’s behaviour but the person is not receiving good quality behaviour support.

That, as for guardianship applications, the Tribunal consist of three members with expertise in disability as well as law.

CID will be making these points and more in its submission to the consultation. But anyone can make a submission. We encourage all CID supporters to have their say.